Beijing, December 3 (China Economic Network) -- A few days ago, a civil judgment released by the China Judgment Documents Network showed that NetEase found that the anchor named "Tang Mouguang" on the Douyu website provided live broadcast services for NetEase comic works to an unspecified public without legal authorization, and recorded the live broadcast content as a video and uploaded it to the defendant's platform. On July 25, 2018, NetEase sent a letter requesting the defendant to stop infringing on netease comics rights. On September 26, 2018, NetEase found that the anchor of "Tang Mouguang" still broadcast netEase comic work "School Has Tricks" and uploaded a live video of the comic on the Douyu platform, and the defendant did not provide the identity information and income information of "Tang Mouguang" to the plaintiff as required by the notice letter.
NetEase therefore sued Douyu in court. Based on the evidence presented by the parties, the Guangzhou Internet Court found that the plaintiff NetEase Company had the right to disseminate information networks over the works involved in the case, and had the right to file a lawsuit in its own name for infringement of the right to disseminate information networks of the works; the defendant Douyu Company should bear infringement liability for the alleged infringement of the infringing video not only providing network technical services such as information storage space services, but should bear infringement liability for the acts of disseminating the works involved in the case in the allegedly infringing video. Taking into account a variety of factors, the court determined at its discretion that the defendant Douyu Company should compensate the plaintiff NetEase Company for economic losses of 8,000 yuan (including reasonable expenses).
In the end, the Guangzhou Internet Court ruled as follows: The defendant, Wuhan Douyu Network Technology Co., Ltd., within 10 days from the date of legal effect of this judgment, shall compensate the plaintiff Guangzhou NetEase Computer System Co., Ltd. for economic losses of 8,000 yuan (including reasonable expenses); reject the other litigation claims of the plaintiff, Guangzhou NetEase Computer System Co., Ltd.
The Civil Judgment of the Guangzhou Internet Court ((2019) Yue 0192 Min Chu No. 841) shows that the plaintiff Guangzhou NetEase Computer System Co., Ltd. (hereinafter referred to as NetEase Company) and the defendant Wuhan Douyu Network Technology Co., Ltd. (hereinafter referred to as "Douyu Company") infringed the right to disseminate information network of works, and after the court filed the case, it applied the ordinary procedures in accordance with the law and held a public hearing. The case is now closed.
The parties in this case submitted evidence around the litigation claims, and the court organized the two sides to exchange and cross-examine evidence in accordance with the law, and ascertained the following facts:
1. The circumstances of the parties' subject matter
Founded on June 24, 1997, NetEase's business scope includes online game service information network dissemination of audio-visual programs; value-added telecommunications services (the type of business is subject to the content specified in the "Value-added Telecommunications Business License"), Internet publishing industry; etc. The defendant, Douyu Company, is a limited liability company established on May 8, 2015, and its business scope includes commercial Internet cultural services, animation design and production, website construction, game software design, production, online game development, and network platform operation and management. The defendant is the organizer of the website with the same name (website domain name: douyu.com).
2. The ownership of the works involved in the case
(1) The plaintiff claimed that the author of the comic work "School Has Tricks" was Helu Company, and the actual creators were Zhang Moupan and Li Mouyang, employees of Lu Company, and the works involved in the case belonged to legal person works. To this end, the plaintiff submitted the following evidentiary materials:
1. On May 1, 2017, Li Mou (pen name: Ning Xi) and Wang Mouhong (pen name: Hong Shao) issued a "Copyright Statement", and the two stated that they were respectively responsible for the drawing and coloring of the comic work "School Has Tricks" according to the arrangement with Lu Company, which was organized and created by Helu Company, and I did not have copyright in the comic work. On the same day, Zhang Moupan (pen name: Xiao Z) and Li Mouyang (pen name: Cat Boss) issued a "Power of Attorney" to Youlu Company as authorizers, and issued a "Power of Attorney" with Lu Company to sublicense to NetEase Hangzhou Company, and the two authorization letters stated that Zhang Moupan and Li Mouyang would adapt the audio version of the comic work "School Has Tricks" (including black and white and color versions), the right to disseminate the information network of the comic work and its sound version, disseminate it to the public, broadcast (including but not limited to webcasting, real-time broadcasting, The rights of delayed retransmission, etc.), as well as the "other rights that shall be enjoyed by the copyright owner" stipulated in Article 10, Paragraph 1, Item 17 of the Copyright Law of the People's Republic of China, and other rights agreed upon by the two parties are granted to Lu Company for exclusive use, and Lu Company then sublicense the above rights to NetEase Hangzhou Company, netEase Hangzhou Company has the right to sublicense the above rights, and has the right to defend the rights of infringement in its own name or authorize others alone.
2. The "Power of Attorney" issued by NetEase Hangzhou Company as the authorizer on May 10, 2017, which states that the authorized party exclusively licenses its own copyrighted comic work "School Has a Trick" to be used by the licensee NetEase Company in its netease products (including but not limited to netease website ×× and netease comics mobile clients), and the licensee has the right to protect the rights of the aforementioned works in its own name through civil litigation, administrative, criminal and other means The authorization period is from May 10, 2017 to July 30, 2020.
3. On April 12, 2018, he and Lu Company issued a "Statement" informing NetEase Hangzhou Company that the name of the authorized work "School Has Ghosts" in the "Agreement" of the two parties was changed to "School Has a Trick", and the rights and obligations of the two parties for the works with the name changed were equivalent to the rights and obligations of the "authorized works" in the agreement between the two parties.
4. Screenshot and timestamp certification certificate of the page published by "School Trick" in NetEase Comics, the screenshot page shows that the "School Has Trick" comic signature "Production: with Deer Animation", "Compilation: Little Z Cat Boss", "Coloring: Hong Shao"; popularity 339 million; spit 45,000; serialized to 20 (1) episode. Screenshot of the popularity list of NetEase Comics Horror List, showing that the "School has Tricks" comic ranks sixth.
(2) The plaintiff stated that the comic work "School has Tricks" was first published on May 10, 2017 and was exclusively published on the NetEase Comics platform, for which the plaintiff submitted the relevant screen recordings and screenshots of the NetEase Comics Platform, and the joint trust timestamp service center certified the above documents and issued the "Trusted Timestamp Certification Certificate".
3. The facts of the alleged infringement and the comparison of the circumstances
On September 26, 2018, the United Trust Timestamp Service Center issued the "Trusted Timestamp Authentication Certificate" according to the application of the applicant NetEase Company. According to the recording record of the certification information, search for "Tang Mouguang" in Douyu Network, and enter the "Tang Mouguang" live broadcast room to play back, release a number of live video records, click to enter the "[Sound Comics] Tang Mouguang Broadcast Comics 2018-07-2821 Point Field", "[Sound Comics] Tang MouGuang Broadcast Comics 2018-07-2919 Point Field" Live Replay, the live video content includes the "School Has Tricks" comic screen display and dubbing, Among them, the replay video on July 29, 2018 showed the content of the cartoon "< School Has a Tricky > (Up and Down)" claimed by the plaintiff, in which the comic screen content accounted for a large part of the middle of the live broadcast screen, and the playback time was about 9 minutes and 5 seconds.
The defendant recognized the authenticity, legality and relevance of the timestamp document, and stated that it had reached a preliminary cooperation agreement with the plaintiff in early July 2018 on a total of 30 comics involved in the case, including the work "School has a Mystery", and before the agreement was signed, after being questioned by the defendant, the plaintiff confirmed that the defendant's platform could allow the anchor to use the relevant works first; after receiving the plaintiff's letter, the defendant contacted the plaintiff by phone to understand the situation, and the plaintiff still replied that it could continue to use it, but the defendant had promptly removed the video link that the plaintiff claimed might be suspected of infringement. The rights work involved in the case was not included in the plaintiff's complaint letter, and the defendant, as a platform, could not review and deal with the matters that the plaintiff had not complained about in advance, but after receiving the litigation materials in this case, the alleged infringing video had been dealt with in a timely manner.
In the lawsuit, both parties confirmed that the comic works displayed in the screen of the allegedly infringing video uploaded by the Douyu live broadcasting platform were substantially similar to the works claimed by the plaintiff.
4. Other ascertained facts
On July 25, 2018, NetEase Hangzhou Company sent a "Notice Letter Requesting Immediate Suppression of Infringement" to the defendant Douyu Company, regarding the serious infringement of its copyright on the "Douyu" website operated by the defendant and the "Douyu" mobile phone, claiming that multiple users of the Douyu website and the Douyu mobile phone terminal provided online live broadcasting, dubbing, and online review services for some live video videos to the comic works on the platform with exclusive license rights for the plaintiff, and profited in the process of live broadcasting. The plaintiff demanded that the defendant immediately take measures before 15:00 on July 27, 2018 to prohibit network users from re-streaming the comic works of the NetEase website, and delete all infringing videos from the defendant's server; inform the infringing user of the true information and income; and guarantee that the plaintiff's legitimate rights and interests would not be infringed in any form in the future. The letter is also accompanied by infringing users and links, the "Power of Attorney" issued by NetEase Hangzhou Company to the plaintiff NetEase Company, and the copyright ownership documents of six works (excluding works involving rights in the case).
In the lawsuit, both parties confirmed that the defendant Douyu Company had deleted the allegedly infringing video after receiving the notice from the plaintiff NetEase Company, and that the anchor of the alleged infringing video, "Tang Mouguang", was a registered user of the defendant's website.
The court held that this case is a dispute over the infringement of the right of dissemination of the information network of the work, and there are the following three points of contention: first, whether the plaintiff has the right to claim the copyright of the work involved in the case; second, whether the defendant constitutes infringement of the right-owned work involved in the case; and third, if the defendant constitutes infringement, what kind of infringement liability should be borne.
1. Whether the plaintiff has the right to claim the copyright of the work involved in the case
The copyright belongs to the author, and in the absence of proof to the contrary, the citizen, legal person or other organization that signs the work is the author. The works involving rights in the case were publicly published on the website of NetEase Comics, and the works on the website page were marked with copyright information such as "Production: Animation with Deer", "Compilation and Painting: Little Z Cat Boss", "Coloring: Hong Shao", etc., combined with the "Power of Attorney" issued by the Deer Company and the "Copyright Statement" issued by the participants in the creation, through the mutual confirmation of the copyright content contained in the display information on the web page of the works involved in the case, constituting a complete chain of evidence, therefore, for the deer company to enjoy the copyright of the works involved in the case, The plaintiff has completed preliminary evidence. As for the statement issued with the Deer Company regarding the change of the name of the work, the court also reasonably accepted it and confirmed that the original name of the comic "School Has Ghosts" was changed to "School Has a Trick".
According to the two "Power of Attorney" provided by the plaintiff, Helu Company transferred the information network dissemination right and related rights of the works involved in the case to NetEase Hangzhou Company, and NetEase Hangzhou Company, as the licensor, then exclusively licensed the works involved in the case that it enjoyed copyright to the plaintiff NetEase Company to use in its NetEase products operated by netease companies, and authorized NetEase Company to pursue legal responsibility in its own name for infringement of the internet rights of information network dissemination rights of these works before and after the transfer, and had the right to obtain compensation or compensation arising therefrom. Therefore, the court found that the plaintiff NetEase Company had the right to disseminate information networks over the works involved in the case, and had the right to file a lawsuit in its own name for infringement of the right of information network dissemination of the works.
2. Whether the defendant has constituted infringement of the works involved in the case
Regarding the assumption of infringement liability, the defendant Douyu Company argued that the anchor of the allegedly infringing video was not a contracted anchor of the platform, and that the alleged infringing video was a personal act of the anchor, and that Douyu Company had conducted a reasonable review in advance, set up a "Copyright Protection Complaint Guideline" on the home page of the platform, and deleted the relevant link at the first time afterwards, and there was no fault, so it should not bear the infringement liability.
Judging from the circumstances of this case, the defendant Douyu Company enjoys the rights and interests in the live broadcast video on its platform, and the behavior of the platform anchor is subject to the management and constraint of the defendant platform. Secondly, according to the statements of the parties, the plaintiff and the defendant had previously consulted on the live broadcast cooperation of NetEase comic works on the defendant's Douyu live broadcast platform, and the defendant also promoted the cooperation on the platform. According to the functional settings of the Douyu platform, the production and upload of the allegedly infringing video is a continuous system process, and the process is examined as a whole, in essence, the network anchor makes the video content for the defendant and directly uploads it to the live broadcast platform for public browsing with its permission, which shows that Douyu Company, as the right holder of the allegedly infringing video and the operator of the Douyu live broadcast platform, acquiesced and encouraged the upload and preservation of the video on the live broadcast platform for public browsing. Therefore, the court held that the defendant Douyu Company did not only provide network technical services such as information storage space services for the allegedly infringing video, but should bear infringement liability for the act of disseminating the works involved in the case in the allegedly infringing video.
3. What kind of tort liability should the defendant bear
The plaintiff's claim for compensation for losses and reasonable expenses was based on law, and the plaintiff failed to prove the actual losses nor the defendant's infringing profits, so the court determined the amount of compensation for the defendant in light of the following factors:
(1) The originality and cost of the work. (2) The popularity and influence of the work. (3) The degree of fault of the defendant. (4) The consequences and impact of the infringement. (5) Reasonable expenses paid by the plaintiff to stop the infringement. Based on the above factors, the court determined at its discretion that the defendant Douyu Company should compensate the plaintiff NetEase Company for economic losses of 8,000 yuan (including reasonable expenses).
In summary, in accordance with the provisions of the Copyright Law of the People's Republic of China, the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases over Copyright, and the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases Involving Infringement of the Right of Communication over Information Networks, the judgment is as follows:
1. The defendant, Wuhan Douyu Network Technology Co., Ltd., shall, within 10 days from the date of legal effect of this judgment, compensate the plaintiff, Guangzhou NetEase Computer System Co., Ltd., for economic losses of 8,000 yuan (including reasonable expenses);
2. Reject the other litigation claims of the plaintiff, Guangzhou NetEase Computer System Co., Ltd.
If the defendant fails to perform the obligation to pay money within the period specified in this judgment, it shall pay double the interest on the debt during the period of delay in performance in accordance with the provisions of Article 253 of the Civil Procedure Law of the People's Republic of China. The case acceptance fee of 926 yuan was borne by the plaintiff Guangzhou NetEase Computer System Co., Ltd. of 381 yuan, and the defendant Wuhan Douyu Network Technology Co., Ltd. was 545 yuan (the acceptance fee had been prepaid by the plaintiff, the court did not return it, and the plaintiff agreed to be paid directly to the plaintiff by the defendant during the above performance period). If you are not satisfied with this judgment, you may submit a statement of appeal to the court within 15 days from the date of service of the judgment, and submit a copy according to the number of parties on the other side, and appeal to the Guangzhou Intellectual Property Court.
Beijing Youlu Culture Media Co., Ltd. was established on January 25, 2016, the registered place is located in Room 415-452, Government Office Building, No. 143 Yong'an Street, Taishitun Town, Miyun District, Beijing (Taishitun Town Centralized Office Area), and the legal representative is Li Mengyang. The business scope includes the organization of cultural and artistic exchange activities.
Article 2 of the Regulations on the Implementation of the Copyright Law of the People's Republic of China stipulates that "works" as used in the Copyright Law refers to intellectual achievements that are original in the field of literature, art and science and can be reproduced in a tangible form.
Article 48 of the Copyright Law of the People's Republic of China stipulates that where there are any of the following acts of infringement, civil liability such as cessation of infringement, elimination of impact, apology, and compensation for losses shall be borne according to the circumstances; where the public interest is harmed, the copyright administrative department may order the infringement to cease, confiscate the illegal gains, confiscate or destroy the infringing reproductions, and may impose a fine; if the circumstances are serious, the copyright administrative department may also confiscate the materials, tools, equipment, etc., which are mainly used to make the infringing reproductions Where a crime is constituted, criminal responsibility shall be pursued in accordance with law:
(1) reproducing, distributing, performing, screening, broadcasting, compiling, or disseminating his works to the public through information networks without the permission of the copyright owner, except as otherwise provided in this Law;
(2) publishing books in which others enjoy exclusive publishing rights;
(3) Reproducing or distributing audio or video recordings recording their performances without the permission of performers, or disseminating their performances to the public through information networks, except as otherwise provided in this Law;
(4) Reproducing, distributing, or disseminating to the public through information networks the audio or video recordings they produce without the permission of the producers of audio or video recordings, except as otherwise provided for in this Law;
(5) Broadcasting or reproducing radio or television without permission, except as otherwise provided for in this Law;
(6) deliberately circumventing or destroying the technical measures taken by the right holder to protect copyright or copyright-related rights for his works, audio or video recordings, etc., without the permission of the copyright owner or the copyright-related rights holder, except as otherwise provided by laws or administrative regulations;
(7) deliberately deleting or altering electronic rights management information such as works, audio or video recordings without the permission of the copyright owner or the copyright-related rights holder, except as otherwise provided by laws or administrative regulations;
(8) Making or selling works that impersonate the signature of others.